Divisional Court partially overturns OHIP clawback of $600,000 from Dr. Elaine Ma

The Ontario Superior Court of Justice’s Divisional Court has partially overturned OHIP’s (Ontario Health Insurance Plan’s) decision to reclaim $600,000 from Kingston family physician Dr. Elaine Ma for her role in organizing COVID-19 mass vaccination clinics during the pandemic. As previously covered, Dr. Ma appeared before the Divisional Court on Tuesday, Dec. 2, 2025, with a decision to be handed down at a later date.The ruling, written by Justice J. Matheson and issued on Tuesday, Dec. 16, 2025, found that while Dr. Ma technically failed to comply with specific OHIP billing rules, it was unreasonable to ignore the extraordinary circumstances of the COVID-19 public health crisis. The Divisional Court’s decision, issued by Justices J. Matheson, M. Varpio, and S. O’Brien, provides a detailed review of the Health Services Appeal and Review Board’s (HSARB’s) original determination and concludes that Ma may still owe some funds to OHIP—though not necessarily the full $600,000 initially sought. ”The Board’s conclusion that there were no extenuating circumstances under section 17.5 of the [Health Insurance] Act was unreasonable,” Justice Matheson wrote, emphasizing the context of the pandemic and Ma’s good-faith efforts.Background: Dr. Ma’s mass vaccination clinicsBeginning in May 2021, Dr. Ma, a family physician and a professor at Queen’s University, organized and ran multiple mass COVID-19 vaccination clinics for the public in the Kingston area. She coordinated clinic locations, ensured the supply of vaccines and other necessary materials, and recruited a team to administer vaccinations. The team included physicians, residents, medical assistants, and medical students.Dr. Ma paid the physicians and residents more than $85,000 in total. She herself was present at the clinics, administered vaccinations, and provided meals and training for medical students who assisted. Non-medical volunteers also helped with clinic setup and operations. Over the course of the clinics, a total of 27,250 vaccinations were administered to members of the public.Justice Matheson acknowledged the public health context, stating, “The COVID-19 pandemic gave rise to a public health crisis. In 2021, Ontario expanded vaccine eligibility to all adults and permitted physicians to administer COVID-19 vaccinations outside of publicly run clinics. Public officials made statements calling on physicians to get the vaccinations done.” The judge noted that OHIP itself commended Ma’s efforts, recognizing her commitment to ensuring rapid access to vaccines during a public health emergency.OHIP billing and the review processThe issue arose because OHIP established specific fee codes for administering COVID-19 vaccinations. Dr. Ma submitted claims for all the vaccines administered at her clinics and was paid accordingly. Under OHIP rules, fees are typically paid first, with any overpayments recoverable afterward. The clinics at issue occurred in July and December 2021 and January 2022, and Dr. Ma received payment at the time of submission.According to Matheson, the Ministry of Health began reviewing Dr. Ma’s claims in May 2022, using a statistical sample of 97 vaccinations, which the ministry deemed statistically significant. “A dialogue ensued, beginning with a general inquiry about who administered the vaccinations, followed by more detailed inquiries and responses about delegation and the clinic locations,” the decision notes.Dr. Ma explained to OHIP that the vaccinations were administered by a mix of physicians, residents, medical assistants, and medical students, all of whom she considered employed for those services under OHIP’s delegation rules. Payments to physicians and residents were made by e-transfer, while students participated for learning purposes and were provided meals. Dr. Ma also explained that family physicians had historically expanded clinic space for mass vaccinations, and she provided documentation for the use of locations such as Queen’s University’s Richardson Stadium and the parking lot at St. Lawrence College.The General Manager of OHIP raised concerns about the absence of tax and other employment-related deductions and the lack of monetary compensation for medical students. The Ministry also questioned Dr. Ma’s control or lease of the premises for the clinics. Both points were assessed using OHIP Bulletin 4215 from 2001 regarding delegated procedures, alongside the records available for the 97 sampled vaccinations.HSARB’s original decisionIn November 2024, the Health Services Appeal and Review Board (HSARB) ordered Dr. Ma to repay all $600,000 in OHIP fees for the clinics, concluding that her billings did not comply with OHIP rules. The Board found that most people administering the vaccines were not Dr. Ma’s employees, as required under the Schedule of Benefits. Medical students were unpaid and considered volunteers, and payments to physicians and residents without employment deductions did not establish an employment relationship.HSARB also rejected Dr. Ma’s argument that multiple physicians contributed components of a single service and that she entered all of the information for each vaccination into Ontario’s vaccine tracking program, COVaxON, herself. HSARB ruled that vaccination is a single, indivisible service. The Board noted record-keeping deficiencies, as Dr. Ma’s records did not consistently identify who administered each vaccine, preventing proof that a properly authorized delegate provided the service. Finally, the Board denied relief under section 17.5 of the Health Insurance Act, finding that the global pandemic did not constitute “extenuating circumstances” and suggesting that section 17.5 only applied to claims not yet paid.Court review: section 17.5 and extenuating circumstancesJustice Matheson’s decision focused in part on section 17.5 of the Act, which allows OHIP to pay claims even if technical rules are not followed, provided there are extenuating circumstances.The judge found that HSARB did not correctly interpret or apply the section. The Board had concluded that section 17.5 did not apply because the claims were already paid, and Dr. Ma still had time and a duty to learn the billing rules. Matheson wrote that the wording of section 17.5 does not limit relief to unpaid claims; it only requires the presence of extenuating circumstances. Since OHIP typically pays claims first and reviews them later, a restriction on unpaid claims would effectively nullify the provision. The court called this interpretation unreasonable.The judge also highlighted the exceptional circumstances under which Dr. Ma worked. She organized large clinics during a global pandemic, vaccinating more than 25,000 people. Both the Board and OHIP had acknowledged her efforts and the public health importance of her work. The vaccinations were medically necessary, insured services, and no other physician would have been paid for the same vaccinations. While Dr. Ma’s record-keeping was imperfect, she maintained COVaxON records identifying each vaccine recipient. She also paid more than $86,000 out of pocket to support the clinics, even if the arrangements did not meet strict technical requirements.Justice Matheson concluded that Dr. Ma acted in good faith and did not intentionally ignore OHIP rules. Given the complexity of OHIP billing and the unprecedented public health crisis, it was reasonable to expect some errors. The judge noted that HSARB’s failure to account for these circumstances properly rendered its decision unreasonable.Impact on repaymentThe court emphasized that extenuating circumstances significantly reduced the seriousness of Dr. Ma’s non-compliance. Justice Matheson wrote, “To simply say this physician had time, during this public health crisis, to inform herself and comply, is unreasonable.” Because the Board failed to consider this properly, it also did not correctly assess what amount, if any, Dr. Ma should repay under s. 17.5.While OHIP argued that incomplete records made it impossible to determine what Dr. Ma should retain or repay, the court disagreed. Section 17.5 allows relief even when records are incomplete and when delegation rules are not fully met. The judge stated that evidence such as the number of vaccines administered and payments made to physicians and residents provides a sufficient basis for determining the appropriate amount. Justice Matheson concluded that the HSARB, not the Divisional Court, should determine the repayment amount, allowing both sides to make written submissions.Court order and costsThe Divisional Court granted Dr. Ma’s application for judicial review on the narrow issue of repayment under section 17.5 of the Act. The case was remitted back to the HSARB to determine the amount Dr. Ma should reimburse, after receiving written submissions from the parties. In addition, the court ordered OHIP to pay Dr. Ma $10,000 in costs.The Divisional Court’s ruling represents a partial victory for Dr. Ma, recognizing the extraordinary public health context in which she worked while clarifying the application of OHIP’s technical rules. While Dr. Ma may still need to repay some funds, the decision affirms that OHIP’s original requirement to claw back $600,000 in full was unreasonable.

Divisional Court partially overturns OHIP clawback of $600,000 from Dr. Elaine Ma

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